WE’RE CRAMPED AS HELL, AND WE WON’T TAKE IT ANYMORE—PLOTTING A CLASS ACTION DISABILITY CLAIM ON BEHALF OF THE VERY TALL AGAINST AIR CARRIERS FOR A FAILURE TO ACCOMMODATE

By Brandon Riley*

* J.D. Rutgers University School of Law–Camden, 2013; B.S. Iowa State University, 2002. I would like to thank my wife Amy for her love and her patience, and for supporting the

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I. INTRODUCTION

I write today in an effort both to raise awareness for and to correct one of modern life‘s most overlooked yet egregious injustices: tall people simply cannot fit into airplane seats. You, the reader, have no doubt been crammed into your own seat, leafing through SkyMall, when you noticed a very tall man, head cocked to the side to avoid the plane‘s ceiling, inching down the aisle. And you felt a certain pity. ―My gosh,‖ you thought as you surveyed your own lack of legroom, ―how is he going to fit?‖ The answer, of course, is that he will not. That guy you felt sorry for on the plane might well have been me. I am six-foot nine, a height I reached before my eighteenth birthday. I have been a giant all my life.1 There are, of course, plenty of advantages that come with being very tall. For instance, I can simultaneously scan two aisles while shopping for food at the grocery store. Viewing public events or concerts is never a problem. Supposedly, at some point I will earn substantially more money than folks of more average height.2 But there are also several challenges that only we, the very tall, know well; such as, the constant state of vigilance required to pass through doorways and basements, buying clothes that fit, hearing conversations when everyone is standing at cocktail parties, and of course, the subject of this Note: the inability to sit in an economy-class airline seat. But tall people do fit in the exit row. If you have flown recently, you probably made your airline reservation online, and absent special frequent flier privileges, you could not reserve an exit row seat more than twenty-four hours in advance of the travel day, even if you wanted to pay the additional fee that airlines often impose for the privilege of extra legroom.3 Instead,

decision to return to school and pursue a law degree. I would also like to thank Professor Jason Cohen for his mentorship and guidance. Thank you to David Gillette for the above cartoon and the drawings throughout (used with permission), and David Carboni, Ken Householder, and Professor David Frankford for editorial feedback. 1. For example, I was five feet tall in first grade. 2. See Dwyer Gunn, How’s the View Up There?: A Q&A With the Author of The Tall Book, FREAKONOMICS (Mar. 2, 2010, 12:30 PM), http://www.freakonomics.com/2010/03/02 /hows-the-view-up-there-a-qa-with-the-author-of-the-tall-book; see also Meg Donahue, Why Tall People Make More Money, CNN (Feb. 2, 2007, 10:26 AM), http://www.cnn.com/2007 /US/Careers/02/02/cb.tall.people/index.html; Cristen Conger, Tall People Earn $789 More Per Inch, HOWSTUFFWORKS (Aug. 8, 2011), http://blogs.howstuffworks.com/2011/08/08/tall- people-earn-789-more-per-inch. I‘m still waiting for this fringe benefit to kick in. 3. See, e.g., Economy Plus Product Details; Terms & Conditions, UNITED AIRLINES, http://www.united.com/CMS/en-US/products/travelproducts/Pages/EconomyPlus.aspx (last

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 125 airlines reserve those seats for their high-status customers, only releasing them to the general public at the last minute on a first-come, first-serve (and willingness to pay) basis.4 It is precisely this injustice that this Note seeks to address. Initially, I conceived of two different legal theories to attack this problem: under a breach of contract theory or under a disability theory. The breach of contract claim is simple—upon purchase of a ticket, the airline promises to provide travel from origin to destination in a seated position.5 Anyone of any stature knows this ―seated position‖ is an impossible dream in an airplane seat.6 But, the lack of accommodation of this type (e.g. public seating) happens frequently enough7 that being very tall is really a type of disability. Sure, in most situations, extraordinary height is probably just an inconvenience, but it becomes a significant issue in an airplane, which is a tightly controlled environment where access requires that everyone purchase a seat.8 Therefore, since airlines are required to accommodate disabled visited Aug. 28, 2013); SkyMiles Reservation Benefits, DELTA AIRLINES, http://www.delta.com/skymiles/about_skymiles/benefits_at_glance/reservation_benefits/index .jsp (last visited Jan. 15, 2012); Booking—Emergency Exit Row, AM. AIRLINES, http://www.aa.com/i18n/agency/Booking_Ticketing/Booking/exit_row_procedures.jsp (last visited Jan. 15, 2012). 4. See Booking—Emergency Exit Row, AM. AIRLINES, http://www.aa.com/i18n/agency /Booking_Ticketing/Booking/exit_row_procedures.jsp (last visited Jan. 15, 2012). 5. See, e.g., DELTA AIRLINES, DELTA DOMESTIC GEN. RULES TARIFF, RULE 1 A–B (2012) (setting forth Delta‘s Contract of Carriage and making clear that ticket purchase constitutes acceptance of the contract). Delta Airlines‘ contract is generally representative of the typical Contract of Carriage. See, e.g., AM. AIRLINES CONDITIONS OF CARRIAGE (2012), http://www.aa.com/i18n/customerService/customerCommitment/conditionsOfCarriage.jsp (last visited Apr. 14, 2013); SW. AIRLINES CONTRACT OF CARRIAGE—PASSENGER (2011), http://www.southwest.com/assets/pdfs/corporate-commitments/contract-of-carriage.pdf (last visited Apr. 14, 2013). 6. ―Seated position‖ is left undefined in the contracts. See, e.g., DELTA RULES, supra note 5, at 3. But the plain meaning definition is often circular. See Seat Definition, MERRIAM WEBSTER‘S ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/seated (last visited Apr. 14, 2013) (defining ―seat‖ as ―to put in a sitting position.‖). However, it can also mean ―to fit correctly in a seat.‖ Id. Naturally, that definition in turn opens the door to defining ―fit correctly.‖ But the common sense view, one most people imagine if asked to ―picture someone sitting in a chair,‖ is probably spine and legs at close to a ninety-degree angle, with two feet on the floor. 7. For example, tall people cannot reasonably fit in: theater seats, driver/passenger/back seats of automobiles, many modes of mass transportation, city bus seats, parking lot shuttles, etc. 8. See FAA Use of Safety Belts Rule, 14 C.F.R. § 91.107(3) (2011) (providing that, unless you are an infant, ―each person on board a U.S.-registered civil aircraft . . . must occupy an approved seat or berth with a safety belt . . . .‖); see also FAA Passenger

126 RUTGERS LAW JOURNAL [Vol. 43:123 passengers,9 proving that extraordinary height is a disability is the best route to achieve accommodation on airplanes, and I will reserve the contract claim for another day. Accordingly, this Note examines the feasibility, procedure, and substantive law around bringing a class action claim on behalf of the very tall against the airlines for height discrimination on the basis of disability. This action, in turn, assumes that someone very tall asserted a right of disability accommodation on an airplane on the basis of height. Of course, a concomitant theme throughout this Note is whether being extraordinarily tall is, in fact, a disability. Part II sets forth the requested remedy—preferential access to the exit row—a requirement for both class actions and disability claims. Part III examines the viability of class certification and maintenance of the suit on behalf of the very tall. Finally, Part IV explores classifying exceptional height as a disability under the Americans with Disabilities Act (ADA) and pursuing the claim. But because airlines are exempt from the ADA, its analytical framework will be applied instead to accommodation of disabled passengers under the Air Carrier Access Act (ACAA) as the best route for relief. The Note concludes with a summation and a call to action. This situation on airplanes for tall folks is dire, and although the tone herein is light, the problem is real and needs to be addressed.

II. PROPOSED REMEDY

The remedy section might ordinarily come after the problem has been fully set forth, but I thought it best to include it first because tall people not fitting into airline seats is a straightforward problem, and the proposed remedy necessarily permeates each aspect of the analysis, and by extension, this Note. The remedy is deceptively simple and easy to keep in mind: class members must be given preferential access to the exit row seats.10 The

Information Rule, 14 C.F.R. § 91.517(d) (2006) (requiring that ―[e]ach passenger required by § 91.107(a)(3) to occupy a seat or berth shall fasten his or her safety belt about him or her and keep it fastened while any ‗fasten seat belt‘ sign is lighted.‖). 9. See 49 U.S.C. § 41705(a)(1) (2003) (preventing discrimination against disabled passengers in airline travel). 10. However, airlines can expressly refuse to seat ―customers with disabilities‖ in exit row seats. See, e.g., Seats, JETBLUE, http://help.jetblue.com/SRVS/CGI- BIN/webisapi.dll?New,Kb=askBlue,case=obj(382583) (last visited Apr. 14, 2013); see also FAA Rule on Exit Seating, 14 C.F.R. § 121.585 (2007). But it must not be a hard-and-fast rule because there are several in the rich constellation of cognizable disabilities under the ADA that would not affect a person‘s ability to open the emergency door or comprehend instructions. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (holding HIV-positive

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 127 problem is inadequate accommodation, so the remedy is adequate accommodation, and currently, the only adequate accommodation for very tall people exists in the exit row. In fact, it is the only remedy that makes sense, and the government‘s reasons for previously denying it to a preceding group of organized tall folks will be refuted below.11 Although it would be great to request preferential access to first class, with the unending river of alcohol and other benefits that status confers, the reality is, for someone as tall as I am, and indeed for many other tall persons, first class is actually not that much better, especially since first class seats recline even further back to encroach on the behind passenger‘s legroom. Plus, who wants to eat with real silverware and drink from an actual glass? Of course, there is a common counterargument for accommodation on airplanes: why not just purchase two seats? After all, airlines are within their rights to require this of passengers requesting seating accommodation,12 and people are familiar with the stories of hefty celebrities being denied travel on crowded planes where two seats together were not available.13 But an airline‘s right to make the obese pay for two seats for accommodation is actually promulgated in the Federal Aviation Administration‘s (FAA) rules and is often enforced via the airline‘s contract of carriage.14 The tall person‘s

status is a disability under the ADA); Andresen v. Fuddruckers, Inc., No. Civ.03–3294 DWF/SRN, 2004 WL 2931346, at *5 (D. Minn. Dec. 14, 2004) (holding plaintiff stated claim under ADA that her stuttering was a disability); see also infra note 106 and accompanying text. 11. See Petition For Rulemaking of the Tall Club of Silicon Valley, Order of Dismisal, OST 2001–8991, 2002 WL 32340933, at *1 (Dep‘t of Transp. July 29, 2002); see also discussion infra Part II. 12. See SW. AIRLINES CONTRACT OF CARRIAGE, supra note 5, at 8 (―The purchase of more than one seat for use by a single Passenger is required in the following circumstances: To accommodate a Passenger who, in the Carrier‘s sole discretion, encroaches on an adjacent seat area and/or is unable to sit in a single seat with the armrest lowered.‖). 13. See, e.g., Yunjlide Nies & Suzanne Yeo, Kevin Smith Too Fat to Fly, ABC NEWS (Feb. 14, 2010), http://abcnews.go.com/WN/kevin-smith-fat-fly/story? id=9837268#.TxMdNpj3MVg (last visited Apr. 14, 2013). 14. See 14 C.F.R. § 382.87 (2009); see also SW. AIRLINES CONTRACT OF CARRIAGE, supra note 5 and accompanying text. The specific power for airlines to require the obese to purchase two seats that flows from 14 C.F.R. § 382.87 is a little oblique, but the Department of Transportation puts out a helpful consumer guide with Frequently Asked Questions, one of which is: ―Must a passenger needing more than one seat to accommodate his/her disability pay for the additional seat(s)?‖ Answers to Frequently Asked Questions Concerning Air Travel of People with Disabilities Under the Amended Air Carrier Access Act Regulation, DEP‘T OF TRANSP. OFFICE OF AVIATION ENFORCEMENT & PROCEEDINGS, 10 (2009), available at http://airconsumer.ost.dot.gov/rules/FAQ_5_13_09.pdf. One simple sentence provides the

128 RUTGERS LAW JOURNAL [Vol. 43:123 response to the argument to buy two seats might be, ―Sure, happy to. I‘ll buy the seat in front of me, and you can take it out before I get there.‖15 This is because a tall person‘s problem causing the inability to sit in the seat is the immutable one of length, not the (arguably) non-immutable one of girth,16 so extra width simply does not solve the problem. This idea is not without precedent. Tall folks organized and sued for nearly this exact remedy about ten years ago when the Tall Club of Silicon Valley (Tall Club), in addition to suing multiple airlines for tall person accommodation,17 also filed a petition for a rule change with the U.S. Department of Transportation (DOT) for tall person ―comfort‖ in airplane seats.18 The lawsuits went nowhere, in large part because the DOT dismissed the Tall Club‘s petition.19 In so doing, it disputed whether the proffered remedy, preferential exit row seating, was as easy to implement as the Tall Club claimed.20 Instead, the DOT concluded, ―the cost to air carriers of changing their computer reservation systems and training their personnel in compliance procedures . . . would be considerable.‖21 But the Tall Club was

answer: ―A person who requires more than one seat for any reason (e.g., because of obesity or a disability) can be required to pay for all of the seats used.‖ Id. 15. Tall folks‘ problem is not necessarily one of unwillingness to pay more, but rather it is one of access. The remedy seeks to provide preferential access to the seats at the time of reservation, regardless of whether the tall customer has special privileges with the intended airline. 16. I say obesity and its accompanying girth is ―arguably‖ non-immutable not because I am unsympathetic to any underlying physiological condition causing an individual‘s obesity, but because procedures and treatments exist to alleviate the condition, ranging from diet and exercise for the less extreme cases to drug therapy and surgery for the more extreme. See, e.g., Obesity: Treatments and Drugs, MAYOCLINIC.COM, http://www.mayoclinic.com/health /obesity/DS00314/DSECTION=treatments-and-drugs (last visited Apr. 14, 2013). 17. See Brief for Appellant & Cross-Respondent at 2, Tall Club of Silicon Valley v. Alaska Airlines, et al., No. A102863 (Cal. Ct. App. Sept. 9, 2003) (noting that the Tall Club ―on behalf of the tall people of California, sued twelve domestic air carriers in San Mateo Superior Court.‖). 18. Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *1 (Dep‘t of Transp. July 29, 2002). 19. After the DOT denied the Tall Club‘s rulemaking petition, the California Appellate Court dismissed the Tall Club‘s claim under the doctrine of equitable abstention. Tall Club of Silicon Valley v. Alaska Airlines, No. A102863, 2004 WL 363529, at *1–2 (Cal. Ct. App. Feb. 27, 2004); see also discussion infra Part IV.B. 20. See Petition, 2002 WL 32340933, at *2 (―[W]e disagree with Tall Club‘s assumption that the cost of the proposed rule would be negligible simply because it would not require air carriers to reconfigure the seats in their aircraft.‖). 21. Id.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 129 right—implementation of this remedy is fairly easy.22 Many airlines already hold desirable seats open, such as the exit rows and bulkhead rows, for advance website reservation for their qualified frequent flier members.23 Therefore, making this innocuous addition to the reservation system could not be too difficult a task, given the talented website programmers the airlines obviously employ. But even if a website modification proved too difficult or costly, tall people could call to book the flight and exit row seat, asserting their right to do so over the phone. Plus, it would be difficult to fraudulently obtain accommodation based on height, because shorter people lying to get an exit row seat would be obvious. This fact addresses the DOT‘s ―training‖ conclusion above.24 Surely the DOT did not think it would be difficult for airline bosses to tell flight attendants and other staff, ―We‘ll be accommodating tall people now. We‘ll be preferentially issuing them exit row seats. However, if a tall person comes up to you and says ‗I‘m a tall person,‘ but does not have an exit row seat assigned, and from your judgment the person cannot physically stand inside the plane, let alone sit in a regular seat, put him or her in an exit row seat.‖ Mass email capabilities existed in 2002; undoubtedly this ―training‖ could have been accomplished in five seconds via a company-wide email.25 In any event, for these reasons it is doubtful either of these arguments previously made by the DOT against preferential exit row seating for tall persons holds any weight today. Another reason the DOT cites against accommodating tall people is ―loss of the good will of other groups who perceive themselves as equally needy of more room and for whom access to the most desirable seats would be greatly curtailed . . . .‖26 The agency notes further that it is ―particularly reluctant‖ to impose ―additional costs‖ because the airlines had recently been incurring

22. Maybe the part about changing their computer systems was true in 2002 when this dismissal was issued, but such an assertion would barely pass the laugh test today. All that would be needed would be a checkbox next to the phrase ―I am very tall and require legroom accommodation‖ on the seat assignments page, and checking the box would unlock the exit row seats for website selection and reservation. 23. See SkyMiles Reservation Benefits, supra note 3; Booking—Emergency Exit Row, supra note 3. 24. Petition, 2002 WL 32340933, at *2. 25. See generally Dan Fletcher, A Brief History of Spam, TIME (Nov. 2, 2009), http://www.time.com/time/business/article/0,8599,1933796,00.html. ―Spam‖ is a form of mass email where ne‘er-do-wells attempt to lure unsuspecting users into making a (often fraudulent) purchase. Id. If spam existed in 1978, as the TIME.COM article indicates, then mass email capability by definition existed from at least that date forward. Id. 26. Petition, 2002 WL 32340933, at *2.

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―substantial losses,‖ a financial reality the DOT expected would continue for some time.27 I will address each of these final points individually. First, as far as ―loss of the good will of other groups‖ is concerned, it is difficult to ascertain exactly to whom the DOT is referring.28 Who else needs more legroom? After all, this suit is not seeking ―more room‖ in general but rather an adequate amount of room in which to place one‘s legs. The agency references obese people and the elderly with regard to their space in general,29 like they would be jealous if tall people received legroom accommodation on planes and they did not. This makes no sense—people of average height understand that if even they have trouble fitting in the seats, then someone significantly taller may not fit at all.30 If the DOT is referencing the wheelchair-bound or those with fused legs, its regulations already provide specific remedies and seating accommodation for these groups.31 Additionally, with respect to the agency‘s assertion that ―access . . . would be greatly curtailed‖ for other groups wishing to obtain the ―desirable‖ seating like exit row seats,32 such a statement is a vast overestimation of the number of tall folks in America. The Tall Club was requesting relief for men

27. Id. 28. Id. 29. See id. (noting the current regulation also ―excludes groups of non-disabled individuals, such as persons of wider than normal girth or the elderly, for whom additional room might also be highly desirable.‖). 30. Indeed, in stark contrast to this sweeping ―loss of goodwill‖ conclusion the DOT draws, several times I have had the experience of someone giving up an exit row seat for me when he or she sees me crouching down the aisle, or, similarly, sympathetic flight attendants have convinced exit row-seated passengers to exchange seats with me when they see me board the plane. Surely I am not alone among the very tall in these experiences. Admittedly, this is purely anecdotal evidence and conjecture, but absent evidence to the contrary (and none was provided by the DOT in its rebuke of this remedy), I will reasonably claim that goodwill exists from other groups to support tall folks‘ mere ability to sit in a coach class seat. 31. See 14 C.F.R. § 382.81 (2009). For the wheelchair-bound, seating accommodation is only required in the event the person ―cannot readily transfer over a fixed aisle armrest . . . ‖ 14 C.F.R. § 382.81(a) (2009). No extra legroom is required unless the passenger has a ―fused or immobilized‖ leg(s). 14 C.F.R. § 382.81(d) (2009). If that is the case, the regulations mandate a provision of ―a bulkhead seat or other seat that provides greater legroom . . . .‖ Id. The DOT specifically references ―passengers with fused or immobilized legs‖ in its dismissal of the Tall Club‘s Petition, finding them to be one of two ―very narrow subsets‖ of passengers to whom airlines owe legroom accommodation of the type the Tall Club requested (the other being those with service animals). Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *2 (Dep‘t of Transp. July 29, 2002) (emphasis in original). 32. Id. at *2.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 131 six-foot two and over, and for women five-foot ten and over, which are the minimum height requirements for admission into the ―Club.‖33 They claimed to represent as much as five percent of the U.S. population.34 However, as more fully explained in Part III, I am aiming for a putative class of a much, much narrower subset consisting of just two-tenths of one percent of the U.S. population.35 So if it is assumed the average airplane being flown in this country has roughly 130 economy class seats with 6 exit row seats,36 there is then a 0.26 percent chance one of the exit row seats will be required for accommodating a class member.37 Therefore, the DOT cannot draw the same conclusion with respect to the class hogging all the good seats, as it did against the Tall Club, because the population statistics prove otherwise.38

33. See id.; see also TALL CLUB OF SILICON VALLEY, http://www.tcsv.org/ (last visited Jan. 15, 2012). A quick diversion: in the spring of 2000, I lived down in Key West, Florida, and I waited tables at the Hard Rock Café there. Tall Clubs International, Inc., with whom Tall Club of Silicon Valley is affiliated, rented out the restaurant for a party during an annual retreat Tall Clubs International evidently holds. See TALL CLUBS INT‘L, http://www.tall.org/ (last visited Apr. 14, 2013). The event even featured Miss Tall International, complete with tiara and sparkly dress. See, e.g., Miss Tall International, TALL CLUBS INT‘L, http://tall.org/tci- acts/miss-tci/ (last visited Apr. 14, 2013). Unsurprisingly, my manager thought it would be very funny to have me work their party. I ended up being the second tallest person there, and the members begged me to join the ―Club.‖ (I declined.) But what was memorable about the evening was how a seven-foot four guy helped himself to some appetizers. The appetizer table was below his knees and he actually had to squat down to reach it, like one might do to pick up a dime off the sidewalk. If there is any doubt whether extraordinary height is a disability, one could just consider his plight, because I am certain he runs into accommodation problems everywhere he goes, let alone when he sits anywhere in a plane other than in the exit row. 34. See Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *1 (Dep‘t of Transp. July 29, 2002). 35. See discussion infra Part III.A.1. 36. For example, Delta‘s Airbus A320 planes have 132 economy class seats, with 12 exit row seats. See Delta Airlines Airbus A320, SEATGURU, http://www.seatguru.com/airlines/Delta_Airlines/Delta_Airlines_Airbus_A320.php (last visited Apr. 14, 2013). The Boeing 737-700 in Delta‘s fleet, on the other hand, has only 112 economy class seats and 6 exit row seats. See Delta Airlines Boeing 737-700, SEATGURU, http://www.seatguru.com/airlines/Delta_Airlines/Delta_Airlines_Boeing_737-700W.php (last visited Apr. 14, 2013). But Delta‘s Boeing 747-400 has 286 economy class seats with 12 exit row seats. See Delta Airlines Boeing 747-400, SEATGURU, http://www.seatguru.com/airlines /Delta_Airlines/Delta_Airlines_Boeing_747-400_C.php (last visited Apr. 14, 2013). 37. Id. Here is the math on that: .2/100 = x/130; x = (.2 x 130)/100; x = .26. In contrast, another reason perhaps for denying the Tall Club‘s petition was their claimed representation of five percent of the population, which, applying the same math, works out to: 5/100 = x/130; x = (5 x 130)/100; x = 6.5. Thus it was theoretically possible for all the exit row seats on the posited average plane to be taken by tall people under the Tall Club‘s definition. 38. Id.; see also discussion infra Part III.

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Finally, the DOT wished to avoid this remedy in 2002 because it was concerned about imposing costs on an already cash-strapped business.39 In denying the Tall Club relief, however, the DOT goes so far as to say, ―permitting air carriers to adjust services, such as seat size or seating accommodations, free of government interference and in accordance with the dictates of the marketplace, is exactly what was envisioned by the Airline Deregulation Act.‖40 It argues further that airlines might compete with ―services‖ such as legroom or reduced fares.41 But this is a myopic and idealistic view of marketplace capitalism, and completely ignores the converse of that argument—placing seats so close together that even a jockey or an Olympic gymnast would be cramped—is also permitted and perhaps inevitable as the race to the bottom in the airline industry continues.42 One wonders what the public response would be if the vast majority of the flying public had to ride as I do, knees pinned against the middle of the tray table on the seat in front, unable to move. All it would take would be a decision by the airlines to provide a few less inches of precious legroom, wringing extra profit from the hip and knee joints of the traveling public, and it would happen. But that is all beside the point because this is a disability claim, with all the perks and challenges that come with it. One of those perks is an ability to impose reasonable remedial costs on an industry for accommodation.43 Indeed the DOT acknowledges in its dismissal of the Tall Club‘s rule change petition that civil rights are guaranteed to disabled passengers.44

39. Airlines‘ current money problems began after they were deregulated in 1978. See Airline Deregulation Act of 1978, Pub. L. No. 95–504, § 1, 92 Stat. 1705 (1978) (prior to 1994 amendment); see also U.S. GOV‘T ACCOUNTABILITY OFFICE, GAO-06-630, AIRLINE DEREGULATION: REREGULATING THE AIRLINE INDUSTRY WOULD LIKELY REVERSE CONSUMER BENEFITS AND NOT SAVE AIRLINE PENSIONS 9 (2006), available at http://www.gao.gov/new.items/d06630.pdf. 40. Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *3 (Dep‘t of Transp. July 29, 2002). 41. Id. 42. In-depth analysis of the Airline Deregulation Act of 1978 is beyond the scope of this Note. However, for a brief yet entertaining elucidation of how the industry came to be in the woeful state it is today, listen to the podcast Planet Money: The “Nasty, Rotten” Airline Business, NAT‘L PUB. RADIO (Dec. 9, 2012) (downloaded using iTunes). 43. See 42 U.S.C. § 12182(b)(2)(A)(ii) (2009) (prohibiting ―a failure to make reasonable modifications . . . when such modifications are necessary to afford . . . accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of . . . accommodations . . . .‖). 44. See Petition, 2002 WL 32340933, at *2. In its dismissal, the Agency notes the Tall Club ―strenuously assert[s] that tall people are not members of a legally protected class, such

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 133

Unfortunately, it is very difficult to prove a disability that is not already historically regarded as one.45 That challenge, however, will be addressed in Part IV. But, since the remedial bar for accommodation is ―reasonableness,‖ preferential exit row seating meets that standard.

III. LIKELIHOOD OF CLASS CERTIFICATION AND MAINTENANCE OF CLASS ACTION

With a remedy in mind, it is time to begin strategizing the litigation. The first step in any class action obviously would be certification of the class. In this case, it makes sense to certify a class of tall people in general because the legal wrong applies to tall people equally, a situation that is analogous, for example, to certifying a broad class of persons in wheelchairs needing access to public buses. However, in the wake of the U.S. Supreme Court‘s recent class certification denial of a very large class of Wal-Mart employees in Wal-Mart Stores, Inc. v. Dukes, it is not a given that the very tall would be certified as a class.46 But any class certification hinges first on satisfaction of the elements of Rule 23 of the Federal Rules of Civil Procedure, which applied here would mean establishing there is a substantial number of exceptionally tall folks, that none of them can fit in airline seats, and that the airplane‘s seating arrangement is the cause. Therefore, certification will be discussed first in Section A. Of course, certification is only half the battle. There are maintenance requirements as well for a class action, which require further demonstrations of commonality with respect to treatment under the law, and those requirements will be addressed in Section B.

A. Requirements of Class Certification

Under the Federal Rules, class certification requirements are straightforward.47 Rule 23(a) lists the prerequisites, which can be explained as requirements of numerosity, commonality, and typicality, with a further requirement that the ―representative parties . . . fairly and adequately protect

as certain disabled individuals.‖ Id. In my opinion, this was the Tall Club‘s chief failure in its petition and litigation for an accommodation remedy against the airline industry. 45. See discussion infra Part IV.A. 46. 131 S. Ct. 2541, 2556–57 (2011) (denying class certification and holding that ―[b]ecause respondents provide no convincing proof of a companywide discriminatory pay and promotion policy . . . they have not established the existence of any common question.‖). 47. See generally FED. R. CIV. P. 23(a–g).

134 RUTGERS LAW JOURNAL [Vol. 43:123 the interests of the class.‖48 The Supreme Court also has a long-held requirement that any plaintiff representative of a putative class must be a member of the class.49 Thus, in order to discern if exceptionally tall persons fit the bill, a brief recitation of the applicability of these requirements is in order. However, although it is certainly possible to bring a class action for discrimination in state court,50 the discussion here will be confined to certification under the Federal Rules and federal jurisdiction, as the claim arises under federal anti-discrimination law, in order to avoid redundancy.

1. Numerosity

Under Rule 23(a)(1), the numerosity requirement for class certification is met if ―the class is so numerous that joinder of all members is impracticable.‖51 This is a broad standard, and the Supreme Court articulated it in General Tel. Co. of the Nw., Inc. v. EEOC as one that should be judged on ―the specific facts of each case‖ with no ―absolute limitations.‖52 Although there is no threshold requirement for the size of the class, a party

48. FED. R. CIV. P. 23(a)(1–4). The exact language of each of the subparts of Rule 23(a) is further explained herein. See discussion infra Section III.A.1–4. 49. See, e.g., Dukes, 131 S. Ct. at 2550 (―Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate . . . . [The requirements] effectively ‗limit the class claims to those fairly encompassed by the named plaintiff‘s claims.‘‖) (quoting General Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980)). 50. The preferable state court would be one in the Upper Midwest, where the tall folk are more plentiful. Michigan, which actually bans height discrimination, would be a likely candidate. See Eliot-Larsen Civil Rights Act, 37.2102 MICH. COMP. LAWS ANN. § 102(1) (West 1976). 51. FED. R. CIV. P. 23(a)(1). 52. 446 U.S. 318, 330 (1980). The size of the class is the most obvious factor courts consider in determining impracticability of joinder. See 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 1762 (3d ed. 1998). However, because of the case-by-case nature of class certification, it is unwise to rely solely on precedent with regard to the size of the class to show impracticability. Id. For example, a Pennsylvania District Court certified an antitrust class of just 25 members, while denying certification a few years later to a class estimated at around 330 members. Compare Phila. Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 463 (E.D. Pa. 1968) (certifying class of 25 members to avoid burdening the court with as many lawsuits), with Minersville Coal Co. v. Anthracite Export Ass‘n, 55 F.R.D. 426, 228 (M.D. Pa. 1971) (denying certification to prospective class with 330 members by finding joinder not impracticable). Instead, the court will analyze several factors inherent to the case itself, including the nature of the action and claims asserted, geographic disbursement of class members, and ease of obtaining jurisdiction, to name a few. See 7A WRIGHT ET AL., § 1762.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 135 seeking to prove ―impracticability‖ may not merely speculate at the size of the class.53 This raises significant dilemmas right out of the gate. How does one avoid speculation? How does one know how many exceptionally tall people there are? How does one define ―exceptionally tall?‖ Of course, doing so necessarily forces a discriminatory choice, which is the evil this action seeks to cure to begin with. Nevertheless, there is a legal calculation here, and the proper one must be made if the suit is to proceed beyond its own procedural requisites. Therefore, a line must be drawn, and the slightly less tall that fall below it may be spared the label of ―disabled,‖ but they will probably still be uncomfortable flying in coach. Class certification has been denied when the number of class members is too small such that the plaintiff could not show impracticality of joinder.54 Therefore, it would be antithetical to the goals of this suit to draw the line for class membership at seven-foot six, where only former NBA player Yao Ming55 would likely find relief. In fact, simply drawing the line at any height, without further explanation, probably invites criticisms of arbitrariness and speculation, because no one can say with certainty the plight of a six-foot five individual in an airplane seat is significantly worse than someone‘s who is six-foot four. Instead, the better approach is to draw upon statistical outliers, and craft from there a class membership that relies on statistics, genetics, and the relevant population‘s definition of exceptional height.56

53. See, e.g., Kempner v. Town of Greenwich, 249 F.R.D. 15, 18 (D. Conn. 2008) (ruling plaintiff‘s argument that ―Connecticut had 3,510,297 citizens of which 62,236 reside in Greenwich‖ unpersuasive to establish that ―there are so many citizens in Connecticut who ‗desire access to the traditional public forums of Greenwich‘ that joinder of every one of them would be impractical.‖ (quoting Third Amended Complaint at 1, Kempner v. Town of Greenwich, No. 3:06cv1393 (JCH) (D. Conn. 2008), 2007 WL 4456072)). 54. See, e.g., Flowers v. Webb, 575 F. Supp. 1450, 1458 (E.D.N.Y. 1983); Miller v. Peeples, 456 F. Supp. 38, 41 (N.D. Miss. 1978); Lang v. Kansas City Power & Light Co., 199 F.R.D. 640, 645 (W.D. Mo. 2001). 55. Yao Ming is seven-foot six. See Yao Ming Player Profile, NBA, http://www.nba.com/playerfile/yao_ming/ (last visited Apr. 11, 2013). 56. To illustrate, being six-foot nine, I am constantly reminded by strangers on a daily basis how tall I am. Usually, it comes in the form of an unhelpful observation, like a grocery store cashier saying, ―You‘re really tall, you know that?‖ My normal reply is, ―Yes.‖ The point is, merely seeing me and being in my presence forces some people to acknowledge it. That recognition, I believe, should be the starting point for class membership, and statistics can determine where it lies.

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Statistically speaking, height can be expressed in terms of probability and in terms of a measured distribution.57 Height is a genetic expression, and any extreme or unexpected expressions can be safely labeled as ―mutations‖ and calculated with the same probability one expects for mutations with respect to other genetic expressions.58 And because extreme genetic expressions are rare, this is valuable information with respect to quantitative analysis, as extremes are categorized as outliers in any standard Gaussian curve of a given population.59 The first step, then, to define the class, is to construct a height distribution curve with respect to the U.S. population and pinpoint its outliers. The starting point for making this curve is the mean height for adult males and females. According to the Centers for Disease Control (CDC), the average height for men over age 20 in the U.S. is 69.3 inches, or a little over five-foot nine and for women it is 64.1 inches, or a little over five-foot four.60 Taken together, the height of the average American person over age 20 is 66.7 inches, or about five-foot six and a half.61 Statisticians then rely on the standard deviation from the mean to find outliers, and will typically eliminate data that fall outside 3 standard deviations on either side of the mean when attempting to generalize findings to any particular population.62 Without going into its technical calculation,

57. See Mark F. Schilling, Ann E. Watkins & William Watkins, Is Human Height Bimodal?, 56 AM. STATISTICIAN 223 (2002) (investigating whether combining the two normal distributions of male and female height results in a bimodal distribution). 58. See generally Donald F. Conrad, et al., Variation in Genome-Wide Mutation Rates Within and Between Human Families, 43 NATURE GENETICS 712–714 (2011) (discussing the variation of mutation rates in humans). For example, statisticians would expect any kids my five-foot nine wife and I might create to be taller than average, but because my father and mother are five-foot nine and five-foot six, respectively, biologists and geneticists would not hesitate to call my height a mutation, which is a wonderful rhetorical cross to bear. 59. See Robert W. Hayden, A Dataset that is 44% Outliers, 13 J. OF STAT. EDUC. No. 1 (2005) (―An ‗outlier‘ is an extremely high or an extremely low data value when compared with the rest of the data values‖), available at http://www.amstat.org/publications /jse/v13n1/datasets.hayden.html. 60. See CYNTHIA L. OGDEN ET AL., MEAN BODY WEIGHT, HEIGHT AND BODY MASS INDEX, UNITED STATES 1960–2002, U.S. DEP‘T OF HEALTH & HUMAN SERVS. 10 (2004), http://www.cdc.gov/nchs/data/ad/ad347.pdf. I am using the 1999 data, because that is the data that was analyzed by Schilling, Watkins and Watkins. See Schilling, Watkins & Watkins, supra note 57, at 224. 61. I added the two means together and then divided by two to get this number: (69.3 + 64.1)/2 = 66.7. 62. See, e.g., Donna Roberts, Normal Distribution, OSWEGO CITY SCH. DIST. REGENTS EXAM PREP CTR., http://www.regentsprep.org/Regents/math/algtrig/ats2/normallesson.htm (last visited Apr. 11, 2013).

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 137 one standard deviation from the mean generally covers 68.2% of a population, two covers 95.4%, three covers 99.6-7%, with more than three standard deviations from the mean encompassing roughly the last 0.3% to 0.4%.63 It can be illustrated like this64:

Statisticians, scientists, and political pollsters employ sample sizes of populations to study a population as a whole. Therefore, knowing the mean height of an American is 66.7 inches, one might expect a random sample of

63. Id. These percentages are known as the ―empirical rule.‖ Id. 64. Id. The chart was drawn by David Gillette and was modeled after the New York State Department‘s chart. The original can be viewed at the cited webpage. The x-axis represents the number of standard deviations from the mean, and the y-axis indicates the percentage that generally fall into that range.

138 RUTGERS LAW JOURNAL [Vol. 43:123 height distribution of men and women to look like this65:

Such a data set would yield a standard deviation of roughly 2.84 inches.66 This means 68.2% of Americans are between about five-foot four and five-foot nine and a half, 95.4% are between five-foot one and about six feet, and 99.6% are between four-foot ten and about six-foot three (three standard deviations from the mean). Hence, about two tenths of one percent

65. Schilling, Watkins & Watkins, supra note 57, at 226. The cartoon is a representation of a photo of a living histogram of 143 students arranged by height at the University of Connecticut. Id. Readers can view the original photograph on the cited page. 66. Id. at 224. Schilling, Watkins and Watkins calculated the standard deviations based on the CDC data to be 2.92 inches for males and 2.75 for females. Id. I added the two together and divided by two, which equals 2.835. I then rounded up to 2.84 inches.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 139 on the tall end of the spectrum are over six-foot three and would be considered outliers by statisticians and airplane cabin designers alike, and therefore would not be and indeed are not taken into account when generalizing to the population as a whole. Thus, through statistical calculation, the cutoff point for the putative class is ―over six-foot three.‖ Applying this cutoff of the tallest two-tenths of one percent to the latest U.S. Census data, which reports the U.S. population aged 21 and over at about 221 million,67 yields a putative class of roughly 442,000 persons.68 Accordingly, about 442,000 Americans (probably a bit more, since the height data starts at age 20, not 21) are over six-foot three and would be included in the class. It is safe then to conclude the numerosity requirement would likely be met because litigating 442,000 separate claims is highly impracticable.

2. Commonality

Having shown numerosity, the second prong to consider is Rule 23(a)(2)‘s commonality requirement. The provision predicates class certification on whether ―there are questions of law or fact common to the class.‖ 69 In its analysis in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court acknowledged the commonality requirement is intertwined with the merits of the case, because, as stated above, there must be ―questions of law or fact common to the class.‖70 However, determining ―questions of law or fact

67. See U.S. CENSUS BUREAU, U.S. DEP‘T OF COMMERCE, AGE AND SEX COMPOSITION: 2010 TABLE 1 (2011). I am assuming that human height in America between 1999 and 2010 has remained relatively constant. 68. My math teachers always made me show my work: .2/100 = x/220,000,000; x = (220,000,000 x .2)/100; x = 442,000. 69. FED. R. CIV. P. 23(a)(2). As noted, Justice Scalia recently provided an in-depth analysis of the commonality requirement in the Court‘s class certification denial in Dukes, as its reasoning rested on the class representatives‘ inability to demonstrate commonality within the rule. Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Justice Scalia noted that although commonality ―requires the plaintiff to demonstrate that the class members have ‗suffered the same injury,‘‖ it does not mean, ―merely that they have all suffered a violation of the same provision of law.‖ Id. Rather, ―[t]heir claims must depend on a common contention‖ which ―must be of such a nature that is capable of class-wide resolution . . . .‖ Id. 70. Dukes, 131 S. Ct. at 2551. The majority held plaintiffs could not demonstrate a common question of fact or law because they could not convincingly prove Wal-Mart had a ―companywide discriminatory pay and promotion policy‖ which caused it to make similar discriminatory employment decisions with respect to members of the class. Id. at 2556.

140 RUTGERS LAW JOURNAL [Vol. 43:123 common to the class‖71 here are much less intricate than in an employment action, because doing so only requires analysis of whether a class member can fit in an airline seat. Whether each airline‘s seating arrangement policy constitutes discrimination will be further explored below, but the answer will be safely within the Rule‘s requirement, which, as Justice Scalia articulated in Dukes, requires that a ―determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.‖72 Airlines measure legroom by measuring ―seat pitch,‖ which is the distance from the back of one seat‘s headrest to the back of the headrest of the seat immediately behind.73 Generally, for long-haul economy class domestic flights, this distance ranges from 30 inches to 34 inches, depending on the particular airline.74 But seat pitch is an imperfect measurement of legroom because it fails to take into account the shape of the seat, the depth of the seat‘s cushioning or the inevitable three to four inch encroachment from the reclining seat of the preceding passenger. The superior measurement is to measure the distance between seats, appropriately called ―seat distance,‖ which is the distance from where the back of the seat cushion meets its seat to the back of the seat in front.75 But because (with the exception of exit row seats) airline seating arrangements are unregulated by

71. FED. R. CIV. P. 23(a)(2). 72. Dukes, 131 S. Ct. at 2551. 73. See Legroom Guide, CHEAPFLIGHTS.COM, http://www.cheapflights.com/travel- tips/airplane-legroom-guide/ (last visited Apr. 11, 2013). 74. See Long-haul Economy Comparison Chart, SEATGURU, http://www.seatguru.com/ charts/longhaul_economy.php (last visited Apr. 11, 2013). 75. See, e.g., CLAIRE QUIGLEY ET AL., ANTHROPOMETRIC STUDY TO UPDATE MINIMUM AIRCRAFT SEATING STANDARDS 1–2 (2001). Here is a diagram drawn by David Gillette of seat distance from this report that illustrates the distance at issue better than words can (Distance A):

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 141 the Federal Aviation Administration (FAA),76 it is necessary to borrow the United Kingdom‘s minimum standard of 26 inches for this distance in the effort to show commonality.77 Assuming then, that the seat distance between seats is minimally 26 inches,78 commonality rests on the all-important buttock to knee and heel to knee measurements of putative class members. Why heel to knee? Because for tall people, the point at which their knees hit the seat is actually shorter than the minimum measurement between seats. This is because an airline seat is pitched at an obtuse angle,79 so the amount of available legroom for a tall person actually decreases the further up one‘s knees impact the seat directly in front. This means for members of the class, a 26-inch seat distance is actually considerably less, and that is before that passenger in front decides to lean back three or four inches.80 The U.K., in assessing the adequacy of their 26-inch minimum, found that a seat distance increase to 29.4 inches would accommodate ninety-nine

76. See, e.g., 14 C.F.R. § 121.585 (2012) (regulating exit seating); 14 C.F.R. § 25.813 (2012) (regulating emergency exit access); 14 C.F.R. § 121.310 (2012) (listing additional emergency requirements in addition to exit access). Section 121.310(f)(3)(iv) is the only regulation that mentions seat pitch, and provides airlines with an option to apply for an exception to complying with section 25.813 (emergency exit access) when it would cause seat pitch to fall below thirty inches. 14 C.F.R. § 121.310(f)(3)(iv) (2012). 77. See QUIGLEY ET AL., supra note 75, at 1. This study is interesting because the Joint Aviation Authorities in the United Kingdom asked ergonomics researchers to make airline seating recommendations so that more people might be fully accommodated. Some of their findings regarding safety (including recognizing that current seat distances preclude tall individuals from assuming an emergency brace position) and seat distances will be discussed further in Part IV, but the standout finding is that the current minimum distance of 26 inches only accommodates up to 77% of the European population. Id. at 3. 78. And it could be less—I was unable to find any measurements for U.S. carriers beyond seat pitch. However, I did uncover a recent interview with SeatGuru.com creator Matt Daimler, where he notes that Spirit Airlines just took delivery of a plane with a 28-inch seat pitch, which ―is the lowest we‘ve ever seen in the United States.‖ Josh Noel, Be Savvy about Seating, CHI. TRIB. (May 3, 2011), http://articles.chicagotribune.com/2011-05-03/travel/sc- trav-0503-business-class-20110503_1_comfortable-flight-seat-pitch-matt-daimler. Daimler goes on to confirm that ―the industry average [for seat pitch] is 31 [inches]‖ and Spirit‘s 28- inch seat pitch Airbus A320 has 178 seats, compared with JetBlue‘s 34-inch seat pitch A320, seating 150. Id. One imagines that the seat distance on a plane with 28-inch seat pitch is far less than the minimum 26 inches figure I am using. 79. See, e.g., QUIGLEY ET AL., supra note 75 and accompanying text. 80. I can attest to this, because often when I squeeze into a standard economy class seat, my feet do not touch the ground. Instead, my knees rest against the seat in front of me in the middle of the tray table, as the cartoon that begins this Note aptly demonstrates.

142 RUTGERS LAW JOURNAL [Vol. 43:123 percent of people in the world.81 And as demonstrated, the putative class comprises an even smaller slice, albeit solely of Americans.82 Therefore, the data and analysis convincingly show a common question of fact: the class cannot fit into the average standard coach airline seat.83

3. Typicality

Unlike the tests for numerosity and commonality, the test for typicality is murkier, with no concrete guidelines that courts apply. Under Rule 23(a)(3), plaintiffs show typicality when ―the claims or defenses of the representative parties are typical of the claims or defenses of the class.‖84 This again is broad language, and courts have applied several different tests to determine whether typicality is met.85 For the purposes of this claim, I will assume that if one or more of the common tests are satisfied, then this hurdle to certification will be cleared. One aspect of potential class action claims courts examine to determine typicality is whether the claims asserted on behalf of the class are adverse or unique between the representatives of the class and the absent class members.86 Put another way, a lack of adversity or uniqueness shows typicality among the class.87 Applying this standard to this action is straightforward, because class membership is solely dependent upon requisite human height, with no remedial conflict of interest among putative class members or discrepancy in their treatment when attempting to fit into

81. See QUIGLEY ET AL., supra note 75, at 3 (finding the ―ideal recommendation would be to increase [the minimum distance] to at least 747mm (29.4" – 99%ile world).‖). 82. See discussion supra Part III.A.1. 83. Another (less entertaining) way to satisfy this element is by showing a common question of law, in this case that extraordinarily tall people meet the Americans with Disabilities Act‘s definition of ―disabled.‖ See discussion infra Part IV.A. 84. FED. R. CIV. P. 23(a)(3). 85. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (finding the typicality requirement is met as long as the representative claims are ―reasonably co- extensive with those of absent class members; they need not be substantially identical.‖); Shahriar v. Smith & Wollensky Rest. Grp., Inc. 659 F.3d 234, 252 (2d Cir. 2011) (stating ―‗[t]ypicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability.‘‖) (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993)). 86. See, e.g., Anderson v. Garner, 22 F. Supp. 2d 1379, 1385 (N.D. Ga. 1997) (noting that to find typicality ―the Court simply inquires whether the named representatives' claims ‗have the same essential characteristics as the claims of the class at large.‘‖) (quoting 7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1764 (1st ed. 1972)). 87. Id.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 143 cramped airplane seats. When applying this typicality test, courts have noted it tends to buttress and overlap with the Rule 23(4) requirement of adequate representation, because it ensures the representative plaintiffs can adequately represent the other class members.88 Similarly, another test for typicality courts favor is whether the claims or defenses of the representatives and the members of the class stem from a single event, a course of conduct, or if they are based on the same remedial or legal theory.89 Employed in this fashion, the typicality requirement is used to eliminate class actions where the legal or factual issues among the representatives are significantly different from class members even though they, as a whole, have common issues of law or fact.90 Again, applying this test to this action would tend to show typicality because there are no experiential, factual or remedial differences among class members. Rather, the legal theory of height discrimination applies to all class members traveling on airplanes equally, with the same set of facts—sitting in a standard economy class seat on an airplane—triggering the action. Therefore, because the unity in the class is strong and the above standard typicality tests are met, it is unlikely that certification would be denied based on the Rule 23(a)(3) typicality requirement.

4. Adequacy of Representation

Unlike the three preceding requisites, the adequacy of representation requirement focuses squarely on the class representatives and their counsel and inquires whether the representation on the class members‘ behalf sufficiently serves the concerns of the class as a whole.91 The requirement under Rule 23(a)(4) charges plaintiffs with proving ―the representative parties will fairly and adequately protect the interests of the class.‖92

88. See 7A WRIGHT ET AL., supra note 52, § 1764. 89. Id. 90. See, e.g., Beattie v. CenturyTel, Inc. 511 F.3d 554, 562 (6th Cir. 2007), cert. denied, 129 S. Ct. 608 (2008) (finding a claim is typical if ―‗it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.‘‖) (quoting In re Am. Med. Sys., Inc. 75 F.3d 1069, 1082 (6th Cir. 1996)); Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008) (finding ―‗[a] class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).‘‖) (quoting Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)). 91. See 7A WRIGHT ET AL., supra note 52, § 1765. 92. FED. R. CIV. P. 23(a)(4).

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However, because this requirement involves hypothetical opposition either among putative plaintiff class representatives, members, and/or defendants coalescing around the particulars of the litigation as it moves forward,93 examination in detail of the requirement is beyond the scope of this Note.

B. Maintenance of Class Action

In addition to the above prerequisites for class certification under Rule 23(a), Rule 23(b) contains the requirements for a class action to proceed.94 The provision incorporates Rule 23(a), and gives three scenarios under which a class action can be maintained.95 Because the rule is written in the

93. See 7A WRIGHT ET AL., supra note 52. 94. See FED. R. CIV. P. 23(b). The text of the rule is: Rule 23(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Id.

95. Id.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 145 disjunctive, a party need only satisfy one to successfully prosecute a class action.96 Therefore, it makes sense to pick the most applicable provision, Rule 23(b)(2), which permits class actions to go forward if ―the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.‖97 Evident from this language are two factors which must be satisfied under the provision: (1) the conduct of the opposing party must be ―generally‖ applicable to the class; and (2) injunctive or declaratory relief must be requested for the class.98 Examining the requirements for ―generally applicable‖ first, courts consider as central ―whether the party‘s actions would affect all persons similarly situated so that those acts apply generally to the whole class.‖99 If this is unmet, Rule 23(b)(2) cannot be invoked to maintain the class action.100 Further, courts interpret this to mean the party opposing the class either has to have acted in a consistent manner toward members of the class ―so that the opposing party‘s actions may be viewed as part of a pattern of activity, or has established or acted pursuant to a regulatory scheme common to all class members.‖101 Thus, the challenged conduct must be premised upon ground that is applicable to the entire class.102 The applicable challenged conduct, in this case, is the narrow front-to- back placement of airline seats with respect to seat pitch or seat distance, resulting in an inability for exceptionally tall passengers to assume a normal seated position.103 As demonstrated above, this conduct, although affecting class members to varying degrees of severity, affects class members similarly nonetheless. The next factor under 23(b)(2) requires injunctive or declaratory relief to be requested and available for the class as a whole.104 It applies to any

96. Id. 97. FED R. CIV. P. 23(b)(2). Rule 23(b)(2) was adopted in 1966 ―in part to make it clear that civil-rights suits for injunctive or declaratory relief can be brought as class actions.‖ 7AA CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 1776 (3d ed. 1998). It has specifically been invoked ―to require public facilities to comply with the American with Disabilities Act in ensuring public access to them.‖ Id. 98. FED R. CIV. P. 23(b)(2). 99. See 7AA WRIGHT ET AL., supra note 97, § 1775. 100. Id. 101. Id. 102. Id. 103. See QUIGLEY ET AL., supra note 75 and accompanying text. 104. See FED. R. CIV. P. 23(b)(2).

146 RUTGERS LAW JOURNAL [Vol. 43:123 judicial order, as long as it encompasses ―final‖ injunctive or declaratory relief.105 The remedy proposed here applies as a whole to the class because any individual ―over six-foot three‖ would simply be able to declare his or her status when purchasing a ticket, and receive the ability to reserve exit row seating. The relief is ―final‖ because it is not simply temporary or a preliminary injunctive order, but rather would be the law going forward with respect to airline travel. In sum, as a threshold matter, a class action on behalf of my tall brothers and sisters is at least possible against the airline industry because the prerequisites for class actions under Rule 23(a)(1–4) of numerosity, commonality, typicality, and adequacy of representation are likely satisfied, and because maintenance of the suit is feasible under 23(b)(2).

IV. CLASSIFYING HEIGHT AS A DISABILITY AND BRINGING THE CLAIM

Assuming therefore, that a class of tall people is legally certifiable, the gist of the claim is whether U.S. airline carriers are unlawfully discriminating against the very tall with respect to their seating arrangements inside airplanes. But is extraordinary height cognizable under the Americans with Disabilities Act?106 If it is not, ought it be? It would be impossible to state this claim without addressing these questions. But there is also the further problem that airlines are exempt from the ADA.107 However, the Air Carrier

105. See 7A WRIGHT ET AL., supra note 52, § 1765. 106. See 42 U.S.C. § 12101 (2009). As discussed further in this Part, when courts consider this question, the decision often depends on whether the ―impairment‖ the plaintiff is claiming to possess ―substantially limits a major life activity‖ within the definition of the statute. 42 U.S.C. § 12102(1)(A–C) (2009). For example, the U.S. Supreme Court in Bragdon, discussed at length whether HIV-positive status ―substantially limits‖ one‘s reproductive activity, which the court found was a ―major life activity‖ because it is ―central to the life process itself.‖ Bragdon v. Abbott, 524 U.S. 624, 639–45 (1998). In contrast, Chief Justice Rehnquist, in his dissent, disagreed that reproduction is a major life activity, finding instead the ADA contemplated lesser, more routine activities. See id. at 660 (Rehnquist, C.J., dissenting) (finding the ―common thread‖ of the ADA to be ―activities [that] are repetitively performed and essential in the day-to-day existence of a normally functioning individual‖). But even assuming reproduction is a major life activity, Justice Rehnquist disagreed that HIV- positive status limited it, because ―[t]he record before us leaves no doubt that those so infected are still entirely able to engage in sexual intercourse, give birth to a child if they become pregnant, and perform the manual tasks necessary to rear a child to maturity.‖ Id. at 660–61. 107. See 42 U.S.C. § 12181(10) (2009). Congress decided that ―specified public transportation‖ means ―transportation by bus, rail, or any other conveyance (other than by

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 147

Access Act (ACAA), which provides accommodation for the disabled on airplanes, contains the same definition of ―disabled‖ and the same antidiscrimination provisions as the ADA, so any court‘s analysis under either statutory regime ought to be the same.108 Thus, Section A will grapple with these issues while exploring the current state of the ADA law and comparing its application with the major-life-activity-limiting experience of being an extremely tall person trying to sit in a commercial coach class seat. Section B then plots the class action claim on behalf of exceptionally tall people step-by-step against the airlines for disability discrimination based on height. It has not escaped me that it is very strange to argue that I, by virtue of my tall physical stature am ―disabled‖ with all the connotations the label brings. This is because nobody considers being tall a ―handicap‖ by any sense of the word.109 Quite the opposite is true, in fact, as study after study confirms that people admire tall folks and wish they were taller themselves.110 Hence, my argument flies in the face of the normal perception. But it crystallizes when one considers Congress‘ definition of the word ―disabled,‖ set forth below, and subsequently applies that definition to anyone of substantial height trying to sit in a cramped airline seat and their manifest ―disability‖ to do so.

aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.‖ Id. (emphasis added). Thanks, Congress. Airplanes are also conspicuously absent from the list of ―public accommodations‖ enumerated in the statute. See 42 U.S.C. § 12182(7)(A–L) (2009). 108. Compare 49 U.S.C. § 41705(a) (2003), with 42 U.S.C. § 12102(1)(A–C) (2009). The definition of ―disabled‖ under the ACAA tracks the exact language of the ADA. Id. 109. Thus the ―being regarded as having such an impairment‖ prong of the ADA disability definition will not be analyzed here as a possibility for the claim. 42 U.S.C. § 12102(1)(C) (2009). 110. See supra note 2 and accompanying text. In fact, people frequently ask me if they can just ―have‖ some of my height. Of course, the questioner always leaves what I would look like after this ghoulish height transfer undefined. And I am not alone among the tall in fielding this request. See, e.g., Interview with Stephen Merchant, THE DAILY SHOW WITH JON STEWART (Feb. 28, 2012) (The short Jon Stewart asks the six-foot seven Stephen Merchant for some of his height, and Merchant further discusses the drawbacks of being very tall, including sitting so far back from the wheel while driving that an airbag going off after an accident did not reach his face), http://www.thedailyshow.com/watch/tue-february-28-2012/stephen- merchant.

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A. Extraordinary Height as a Disability under Current ADA Law

To begin, it is instructive to examine the statute itself and how it defines ―disabled.‖ With respect to an individual, the ADA defines a ―disability‖ as any of the following: ―(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.‖111 Discussion here will be confined to Subsection (A) of the statute because the inquiry rests on whether being extremely tall is a ―physical impairment,‖ that is ―substantially limiting‖ and also whether sitting on an airplane to travel from place to place constitutes a ―major life activity‖ within the meaning of the statute.112 The ADA statute also sets forth some ground rules for construction, noting that ―[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals‖ and further that its definition should be construed to ―the maximum extent permitted‖ by the statute.113 Thus, this broad construction extends to the terms ―physical impairment‖ and ―substantially limits,‖ as well as ―major life activities of an individual.‖114

111. 42 U.S.C. § 12102(1)(A–C) (2009). 112. Id. The ADA statute offers a non-exhaustive list of ―major life activities,‖ including major bodily functions, and activities such as ―caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.‖ 42 U.S.C. § 12102(2)(A) (2009). 113. 42 U.S.C. § 12102(4)(A) (2009). 114. See id. These broad construction guidelines had limits placed upon them by the courts, narrowing the definition of ―disability.‖ For example, in Sutton v. United Airlines, Inc., the U.S. Supreme Court held that corrective or mitigating measures (e.g. eyeglasses to correct severe myopia) should be considered in determining whether someone is disabled under the ADA. 527 U.S. 471, 488–89 (1999); see also Toyota Motor Mfg., Ky., v. Williams, 534 U.S. 184, 198 (2002) (holding that to be disabled in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of ―central importance to most people‘s daily lives.‖). However, Congress acted in 2008 and amended the ADA, overruling Sutton, Toyota Motor Mfg., and their progeny, and reinstated a broad definition of disabled, specifically: (E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as—(I) medication, medical supplies, equipment, or appliances, low- vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 149

In sum, any court's analysis under the first subsection of the ADA‘s definition of disability has three steps: first, the court must determine whether the plaintiff has an impairment; second, the court must identify the life activity upon which the plaintiff relies and determine whether it constitutes a major life activity under the ADA; and third, the court then asks whether the impairment substantially limited the major life activity.115 With this framework in mind, it is possible to surmise the viability of the claim. Starting with finding an impairment, it is reasonable to say the ADA does not apply to physical characteristics inside the ―normal‖ range.116 But, as Part III.A.1. of this Note discusses above, the class height falls outside anyone‘s definition of ―normal.‖117 And because there are no other noteworthy limitations within the statute‘s language with regard to ―impairment,‖ the court will then likely narrow its focus to the second and third parts of the analysis: whether sitting while traveling on an airplane constitutes a major life activity, and whether extreme height significantly restricts an individual‘s ability to do so with respect to the general population. While it is unclear whether ―traveling on an airplane‖ is a major life activity, it is crystal clear that ―sitting‖ is.118 Yet in today‘s world, a strong argument can also be made that ―traveling on an airplane‖ is a major life activity. For instance, because our economy is global, it depends on the ease

auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.

42 U.S.C. § 12102(4)(E)(i). 115. See 42 U.S.C. § 12102(1–2); see also Teeter v. Lofthouse Foods, 691 F. Supp. 2d 1314, 1320 (D. Utah 2010). 116. However, even before the ADA Amendments Act of 2008, the definition of ―physical impairment‖ was broad enough to cover the occasional flare-up of psoriasis. See Cehrs v. Ne. Ohio Alzhemier‘s Research Ctr., 155 F.3d 775, 780 (6th Cir. 1998). In fact, the regulations enforcing the ADA are so broad as to define a ―physical impairment‖ as ―[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine . . . .‖ 29 C.F.R. § 1630.2(h)(1) (2012) (emphasis added). 117. See supra Part II.A. 118. See 29 C.F.R. § 1630.2(i)(1)(i) (2011) (setting forth a similar list as the ADA statute: ―[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working . . . .‖) (emphasis added).

150 RUTGERS LAW JOURNAL [Vol. 43:123 of interconnectedness and travel.119 In addition, flying on an airplane is no longer the special occasion it once was,120 and airfares are no longer beyond the means of a majority of the American public.121 Indeed, one could argue air travel is as much an expectation and integral piece of American life as the cell phone. But perhaps the proper framing of the major life activity would be even broader, such as ―sitting while traveling from one place to another.‖ Conceiving the activity in this manner permits an argument that comports not only with the general ADA definition of disability,122 but also with its Title III prohibition against disability discrimination with regard to transportation and public accommodations.123 Importantly, even if the ―major life activity‖ were framed in such a broad sense, it would not tend to capture other modes of transportation or places of public accommodation124 for a failure to accommodate because in every other instance, there is an opportunity for tall folks to simply stand up or stretch if we so choose.125 Reasonable accommodation has already been achieved in those realms.

119. See generally INTERNATIONAL BUSINESS TRAVEL IN THE GLOBAL ECONOMY (Jonathan V. Beaverstock, et al. eds., 2010); Airline Industry Overview, GLOBAL INDUST. AIRLINE PROGRAM AT MASS. INST. OF TECH., http://web.mit.edu/airlines/analysis/ analysis_airline_industry.html (last visited Apr. 11, 2013). 120. See Airline Industry Overview, supra note 119 (noting that ―[t]he growth of world air travel has averaged approximately 5% per year over the past 30 years . . . .‖). 121. See, e.g., KAYAK, http://www.kayak.com (last visited Oct. 6, 2013). I went to Kayak.com, a well-known travel site that searches multiple airlines to investigate today‘s (October 6, 2013) round trip fare from JFK to LAX for a random week, January 11, 2014 to January 18, 2014. The non-stop economy class fares today are $358 for a trip that week. Id. 122. See 42 U.S.C. § 12102(1–2) (2009); see also discussion supra Part IV.A. 123. See 42 U.S.C. § 12182(a) (2009) (prohibiting discrimination on the basis of disability in the ―full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.‖). 124. See supra note 7 and accompanying text. 125. Some further explanation perhaps is warranted: For example, I ride the Port Authority Transit Company (PATCO) high-speed train to law school every day. I measured the seat distance on January 24, 2012, and it measured 24 inches. See supra note 75 and accompanying text for an explanation of the definition of ―seat distance.‖ Obviously, I cannot sit in such a seat. But I have a remedy: I can stand during my ride. (Of course, if I was much taller, I might not even be able to do stand fully upright on modes of public transportation.) Similarly, I barely fit in our car, a 2008 Subaru Outback, or in any car for that matter. But if I get uncomfortable, I can pull over and stretch or ask the driver to do so. This sort of discretion is not available on planes, and in fact the converse is true. Passengers must remain in their seats with seatbelts fastened unless permitted otherwise. See supra note 8 and accompanying text.

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Assuming then that ―sitting while traveling from one place to another‖ constitutes a ―major life activity‖ within the meaning of the statute, the question then becomes, under the third prong of the analysis, whether a class member, under the current seating arrangements employed by airline carriers, is ―substantially limited‖ in doing so in comparison with the general population.126 The answer here likely hinges on the definition of ―substantial.‖127 Is not being able to sit in an airplane seat without your knees resting against the tray table attached to the seat in front a ―substantial‖ impairment? Does it matter that tall people ride on planes with their knees trapped halfway up the seat? Should tall folks suffer the indignity of not being able to lower the tray table to enjoy a meal or carbonated beverage? What about not being able to assume a proper brace position in the event of an emergency without smashing one‘s face into the back of the seat in front‘s headrest? Is it a ―substantial‖ restriction to physically not be able to comply with airline safety guidelines? Measured against the backdrop of the ―ordinary individual,‖ and his or her ability to do these things without restriction, it seems obvious that the answer at least could be ―yes‖ to these questions. Furthermore, there is an ancillary issue here with respect to the ―seated‖ tall individual‘s safety. Although not widely reported, a major issue for tall people while flying is a vascular phenomenon called deep vein thrombosis (DVT).128 It can be caused when legs are held immobile for long periods of

126. See 42 U.S.C. § 12102(1)(A) (2009); see also 42 U.S.C. § 12102(4)(B) (2012) (constructing ―substantially limits‖ to be ―interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008‖); 42 U.S.C. § 12102(4)(E)(i) (2009) (stating that the ―determination of whether an impairment substantially limits a major life activity shall be made without regard to . . . mitigating measures . . . .‖). The ―findings and purposes‖ of the ADA Amendments Act of 2008 are set forth in § 12101 and acknowledge the plight of disabled people and further seek to ―invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.‖ 42 U.S.C. § 12101(b)(4) (2009). 127. As one might imagine, there is a wealth of case law on the definition whether one‘s impairment ―substantially limits‖ the purported ―major life activity.‖ Compare Warshaw v. Concentra Health Servs., 719 F. Supp. 2d 484, 495 (E.D. Pa. 2010) (holding Attention Deficit Hyperactivity Disorder does not limit major life activities of thinking and concentrating), and Teeter v. Lofthouse Foods, 691 F. Supp. 2d 1314, 1321 (D. Utah 2010) (finding Hepatitis C did not substantially limit the major life activity of sexual activity despite spousal revulsion and medication side effect of erectile dysfunction), with Bragdon v. Abbott, 524 U.S. 624, 640–41 (1998) (holding HIV positive status substantially limits major life activity of reproduction); see also supra note 106 and accompanying text. 128. See Deborah Nicolls Barbeau, Deep Vein Thrombosis and Pulmonary Embolism, CTRS. FOR DISEASE CONTROL & PREVENTION (July 1, 2011), http://wwwnc.cdc.gov/travel/

152 RUTGERS LAW JOURNAL [Vol. 43:123 time, causing blood to pool and clot in the deep femoral veins.129 The clot then breaks away when the person moves, and travels to the lungs and causes an embolus, which is a blockage of a pulmonary artery.130 This is obviously dangerous and is often a deadly occurrence, and is one my doctor has specifically warned me about on multiple occasions during routine physical exams.131 And according to the CDC, being over six-foot three actually increases the risk, controlling for levels of immobility.132 Now, consider the tall person who is crammed into an airplane seat, virtually immobile, riding with an acute angle between his or her knees and spine. This situation creates an optimal setting for blood to clot at the bottom of that angle in the legs. The United Kingdom and Europe have already issued warnings to airlines regarding DVT and the placement of airline seats, recommending at least a couple more inches (centimeters there, obviously) of room between the seats.133 Bringing it all together, extraordinary height can be characterized as a disability under the ADA definition, because, although it is a physical characteristic, it falls outside the ―normal‖ range. As such, this physical impairment limits a major life activity, because ―sitting while traveling from one place to another‖ is a major life activity and current airline seats and seat placement do no allow for persons of height to sit normally, safely, or comfortably. Moreover, tall persons‘ inability to sit in airline seats due to yellowbook/2012/chapter-2-the-pre-travel-consultation/deep-vein-thrombosis-and-pulmonary- embolism.htm. 129. Id. 130. Id.; see also Pulmonary Embolism, CEDARS-SINAI, http://www.cedars- sinai.edu/Patients/Health-Conditions/Pulmonary-Embolism.aspx (last visited Apr. 11, 2013). 131. My doctor told me DVT is the ―number one killer of tall men—that and decapitation on roller coasters.‖ He has an interesting sense of humor. I took the DVT thing seriously though, and so if I am stuck in a regular economy seat I get up every forty minutes or so, if permitted to ―move about the cabin.‖ I do this regardless of whether I am seated on the aisle or in the middle or window seat, so one can imagine how much fun it is to be next to me on planes. If tall folks had access to the exit row where their legs would be accommodated, both the potentially deadly DVT and deadly stares and sighs from fellow passengers after crawling over them for the seventh or eighth time could be avoided. See QUIGLEY ET AL., supra note 75, at 38 (finding that ―provid[ing] a minimum of space [would] allow passengers to adopt a range of postures and to thereby stave off the onset of cramp and stiffness. It is presumed likely that the ability to make small but frequent changes to leg posture would also be beneficial in relation to the avoidance of DVT . . . .‖). 132. See Deep Vein Thrombosis and Pulmonary Embolism, supra note 128. 133. See QUIGLEY ET AL., supra note 75, at 36 (acknowledging that ―when the seat in front is reclined, it hits the knees of the passenger (aside from the obvious potential for immediate discomfort and possibly pain) their posture will become extremely restricted which may in turn increase the potential for DVT; it certainly cannot help.‖).

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 153 their constricting arrangement constitutes a ―substantial limitation‖ on this major life activity, because ―sitting‖ necessarily requires being able to put your knees at a ninety degree angle with one‘s feet squarely on the ground. Currently, tall people either cannot do this at all in airline seats, or cannot do so without considerable pain, discomfort, and danger to their well-being.

B. The Discrimination Claim against the Airlines

Having shown that extraordinarily tall folks can make a strong argument for inclusion under the ADA, the problem remains that airlines in particular are exempt from the ADA‘s requirements.134 But, as discussed above, the ADA‘s definition of disability and its anti-discrimination provisions are both present in the ACAA, so the analytical framework as to whether someone is ―disabled‖ within the meaning of either statute should be the same.135 The reason the analysis set forth above in Part IV.A was not performed under the ACAA is because there is some doubt as to whether the ACAA creates a private right of action.136 So, it will be necessary to be creative to bring and win a class action height discrimination suit. Here is the best way to go about it:

134. See supra text accompanying note 107. 135. See supra text accompanying note 108. 136. See Shinault v. Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991) (finding a private cause of action exists under the ACAA because the statute is ―intended to benefit‖ a particular class of persons and because ―the legislative history of the ACAA indicates that Congress intended to provide a private cause of action . . . .‖); see also Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 570 (8th Cir. 1989) (relying on the legislative history of the ACAA to imply a private cause of action). These decisions both depended upon an implicit private action and upon the legislative history of the statute to find private rights of action, but were handed down prior to the U.S. Supreme Court‘s ruling in Alexander v. Sandoval, which narrowed the statutory inquiry as to whether a private right of action exists to give far less weight to legislative history and to focus more on the statutory text. 532 U.S. 275, 286–87 (2001) (holding statutory intent is determinative for finding a private cause of action, and ―without it, a cause of action does not exist and courts may not create one, no matter how desirable . . . a policy matter, or how compatible with the statute.‖). Thus, subsequent decisions under the ACAA by the Second, Tenth and Eleventh Circuits, applying Sandoval, have found that no private right of action exists because an administrative remedy is explicitly set forth in the ACAA, which appellate courts have found precludes a private action. See Love v. Delta Air Lines, 310 F.3d 1347, 1357 (11th Cir. 2002); Boswell v. Skywest Airlines, Inc. 361 F.3d 1263, 1269–71 (10th Cir. 2004); Lopez v. Jet Blue Airways, 662 F.3d 593, 597 (2d Cir. 2011). This situation presents an obvious dilemma for the class action because of this procedural hurdle. Of course, the action could be brought in either the Fifth or Eighth Circuit, but the risk would still be quite high that either court would reverse itself in light of the Supreme Court‘s Sandoval decision and the trend in later Circuit cases.

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To begin, there must first be a triggering event: a class member, i.e. someone over six-foot three, must request accommodation for his or her height on the basis of height being a disability and be denied. A recent decision from the Second Circuit, Lopez v. Jet Blue Airways, provides a plausible road map for getting a discrimination case under the ACAA into federal court.137 The aggrieved passenger must first file a complaint with the DOT alleging discrimination on the basis of a disability under the ACAA.138 The Secretary of Transportation is obliged to hear all complaints regarding disability discrimination, and issue a ruling with an appropriate remedy.139 However, an individual with a ―substantial interest‖ in the outcome of the DOT ruling may appeal it to the nearest U.S. Court of Appeals.140 Yes, the Tall Club tried this route in Tall Club of Silicon Valley v. Alaska Airlines.141 However, they did not proceed under a theory of disability and height discrimination under federal law and opted instead to sue under California law for unfair business practices and for discrimination under the Unruh Civil Rights Act.142 Furthermore, there was some question as to whether their complaints were preempted by federal law, but the U.S. District Court for the Northern District of California, in Tall Club of Silicon Valley v. American Airlines, (same case, different name) found they were not and remanded the case back to California court.143 At the same time, pursuant to the procedural route set forth above, the Tall Club filed a petition for rulemaking with the DOT. However, as discussed, the DOT denied the petition.144 Denial by the DOT prompted the California Court of Appeals to dismiss the case under the ―equitable abstention‖ doctrine, leaving the DOT ruling undisturbed and the Tall Club without a remedy.145 Setting aside how unfair the DOT and California Appeals Court were in denying the Tall Club‘s position, a new CFR Rule, promulgated in 2008 and effective in 2009, might create an opening. 14 CFR § 382.81(d), referenced above in Part II and by the DOT in denying the Tall Club‘s petition, enforces

137. 662 F.3d at 597. 138. Id. 139. Id.; see also 49 U.S.C. § 41705(c)(1) (2003). 140. Lopez, 662 F.3d at 597. 141. No. A102863, 2004 WL 363529, at *1 (Cal. Ct. App. Feb. 27, 2004). 142. See Brief for Appellant & Cross-Respondent at 2, Tall Club of Silicon Valley v. Alaska Airlines, No. A102863 (Cal. Ct. App. Sept. 9, 2003) at 2. 143. No. C 00–982 MJJ, 2000 WL 868524, at *2 (N.D. Cal. June 19, 2000). 144. See Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *2 (Dep‘t of Transp. July 29, 2002); see also discussion supra Part II. 145. Tall Club, No. A102863, 2004 WL 363529, at *1–2.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 155 the ACAA but mandates only that airlines accommodate disabled passengers upon notice from the disabled passenger, and provide extra legroom, as noted above, only ―for a passenger with a fused or immobilized leg.‖146 However, the new rule, 14 CFR § 382.85, entitled, ―[w]hat seating accommodations must carriers make to passengers in circumstances not covered by § 382.81 (a) through (d)?‖ sings a different tune.147 It provides in relevant part:

146. 14 CFR § 382.81(d) (2009); see also discussion supra Part II; Petition for Rulemaking of the Tall Club of Silicon Valley, Order of Dismissal, OST 2001-8991, 2002 WL 32340933, at *2 (Dep‘t of Transp. July 29, 2002). 147. 14 CFR § 382.85(a) (2009). It is instructive to see the whole Regulation for context with the most relevant provisions emphasized: ―What seating accommodations must carriers make to passengers in circumstances not covered by § 382.81 (a) through (d)?‖

As a carrier, you must provide the following seating accommodations to a passenger who self-identifies as having a disability other than one in the four categories listed in § 382.81 (a) through (d) of this Part and as needing a seat assignment accommodation in order to readily access and use the carrier's air transportation services: (a) As a carrier that assigns seats in advance, you must provide accommodations in the following ways: (1) If you use the ―seat-blocking‖ mechanism of § 382.83(a)(1) of this Part, you must implement the requirements of this section as follows: (i) When a passenger with a disability not described in § 382.81(a) through (d) of this Part makes a reservation more than 24 hours before the scheduled departure time of the flight, you are not required to offer the passenger one of the seats blocked for the use of passengers with a disability listed under § 382.81. (ii) However, you must assign to the passenger any seat, not already assigned to another passenger that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request. (2) If you use the ―designated priority seats‖ mechanism of § 382.83(a)(2) of this Part, you must implement the requirements of this section as follows: (i) When a passenger with a disability not described in § 382.81 makes a reservation, you must assign to the passenger any seat, not already assigned to another passenger, that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request. You may require a passenger making such a request to check in one hour before the standard check-in time for the flight. (ii) If such a passenger is assigned to a designated priority seat, he or she is subject to being reassigned to another seat as provided in § 382.83(a)(2)(i) of this subpart. (b) On flights where advance seat assignments are not offered, you must provide seating accommodations under this section by allowing passengers to board the aircraft before other passengers, including other ―preboarded‖ passengers, so that the

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As a carrier, you must provide the following seating accommodations to a passenger who self-identifies as having a disability other than one in the four categories listed in § 382.81 (a) through (d) of this Part and as needing a seat assignment accommodation in order to readily access and use the carrier's air transportation services:

(a) As a carrier that assigns seats in advance, you must provide accommodations in the following ways:

(1) If you use the ―seat-blocking‖ mechanism of § 382.83(a)(1) of this Part, you must implement the requirements of this section as follows: . . .

(ii) However, you must assign to the passenger any seat, not already assigned to another passenger that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request.

(2) If you use the ―designated priority seats‖ mechanism of § 382.83(a)(2) of this Part, you must implement the requirements of this section as follows:

(i) When a passenger with a disability not described in § 382.81 makes a reservation, you must assign to the passenger any seat, not already assigned to another passenger, that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request. You may require a passenger making such a request to check in one hour before the standard check-in time for the flight . . . .148

Most important to this discussion are C.F.R. §§ 382.85(a)(1)(ii), and 382.85(a)(2)(i), respectively. The distinction depends on what type of reservation system the respective airline uses, but either way, the regulation makes clear that accommodation with respect to legroom is available for disabled passengers outside the very narrow ―fused or immobilized leg‖

individuals needing seating accommodations can select seats that best meet their needs. (c) If you assign seats to passengers, but not until the date of the flight, you must use the ―priority seating‖ approach of section 382.83(a)(2).

Id. (emphasis added). 148. Id.

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 157 window articulated in the Tall Club case.149 Additionally, there is no further clarification offered in the Regulation Notes themselves, where the DOT says only that, ―[c]arriers must provide a seat that will accommodate a passenger with a disability other than one listed in section 382.81(a)–(d) when the passenger self-identifies and requests the accommodation in order to readily access and use the carrier‘s air transportation service.‖150 Because it is a relatively new regulation, there have been no hearings (that I could find) or rulings on challenges under 14 C.F.R. § 382.85‘s broader provisions by disabled airline passengers denied seating accommodations. Thus, thanks to this amendment to the Regulations, it seems the class action suit remains viable with respect to the administrative exhaustion requirement. Of course, for the case to go forward the court would have to find that tall people qualify as disabled under the ADA‘s definition. In fact, the entire claim depends on it, because disabled status would permit tall passengers to ―self-identify‖ within the embrace of § 382.85 at the point of making the reservation, and would require airlines to accommodate that tall passenger.151 Hence, having fleshed all of this out, I have come to the conclusion that the best strategy for actually litigating this matter would be to follow the Second Circuit‘s outline in Lopez. First, as above, a class member must assert his or her rights against the airlines under the ACAA and its corresponding regulations.152 Second, assuming the class member is denied accommodation, file both the class action in federal court under the ACAA and the corresponding Petition for Rulemaking with the DOT. If the DOT grants the petition, then relief is granted and tall folks would be accommodated. More likely, however, is despite 14 C.F.R. § 382.85, the DOT would deny the petition based on height not being a cognizable disability. Should this occur, the class would appeal to a circuit court, where a declaratory judgment would likely be made on the question of whether extraordinary height constitutes a disability under the ACAA. Since the class would be seeking a declaration of its rights under the statute rather than actually bringing a claim for damages against the airlines, the issue surrounding the lack of a private right of action would be moot.

149. Tall Club, No. A102863, 2004 WL 363529, at *2. 150. Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614– 01, 27653 (proposed May 13, 2008) (to be codified at 49 C.F.R. pt. 382). 151. Id. 152. Again, this presumes the claim would not be brought in either the Fifth or Eight Circuits, where a private right of action is still recognized under the ACAA. See supra note 136 and accompanying text.

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This would be a long and uphill legal battle, fought with meticulously correct language and bold persuasion to convince the court that fantastic stature, which at first glance seems a marvelous advantage, can actually be a disability when going from JFK to LAX in seat 22E.

V. CONCLUSION

Are you convinced? Likely the biggest hurdle to overcome, in my view, will be the court‘s raised eyebrow and dubious disposition to the assertion that folks over six- foot three are in any way ―disabled.‖153 As demonstrated, however, there is a case to be made, but fitting such an argument into the rubric of the Americans with Disabilities Act will be challenging. If anything, the argument serves to underscore the legal mountains folks who are discriminated against must move in order to assert their rights. Further, it surprised me that from a statistical standpoint, the putative class‘ cutoff point was ―over six-foot three.‖ I thought it would be much higher, but I suspect my inclusion of women in the calculation is what caused it. The inclusion of women, however, makes sense: airplane seats do not care what sex or gender you are; your legs will be squished and your knees will be bruised regardless if you are over a certain height.154 I also found it comforting that there are so many of us—442,000!155 Bringing a class action makes the most sense, because it would establish the bar and provide certainty with regard to the remedy going forward. For example, I might have an easier time proving a disability on behalf of myself, but that would put the bar at six-foot nine and force my tall brothers and sisters below me to fight the good fight by themselves. No. I say the exceptionally tall either get accommodated together or get cramped together. Of course, as stated above, proving the disability will be no easy task. There are many ―built in headwinds‖ to this change, to borrow a phrase from employment discrimination law.156 The argument for this to happen, to sum up, goes like this: A ―disability‖ under the ADA is any physical

153. Of course, the likelihood of significant opposition from the airline industry as a whole will be a challenge as well. 154. My deepest sympathies go out to any women class members out there who might be reading this. I have a very difficult time buying clothes and shoes, but I have to think it is an impossible task for the six-foot four woman. 155. See discussion supra Part III.A.1. 156. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).

2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 159 characteristic that substantially limits a major life activity.157 Being over six- foot three is a physical characteristic that limits the major life activity of sitting while traveling, but substantially limits that activity on an airplane because we are unable to fit in the seats.158 But, because there is no cause of action available under the ADA against the airlines, the suit must proceed under the ACAA with a concurrent exhaustion of administrative remedies with the DOT.159 The class is not seeking damages, rather merely preferential access to the exit row seats.160 So I close with a call to action to my tall brothers and sisters: join me and support this litigation. I know you have suffered the same unlawful indignities as I have while flying coach in the United States. I know you, like I, have furrowed your brows in anger while you were crouching down the aisle toward your middle seat in the back of the plane and you saw some five-foot three person in the exit row, feet dangling and kicking happily in the vast expanse between the two rows. If you have a better argument or theory for recovery, I want to hear it. Email me at [email protected]. I want to make this happen in my lifetime, not only for today‘s tall folks but also for the next generation. After all, our kids are going to be giants, too.

157. 42 U.S.C. § 12102 (1990). 158. See discussion supra Part IV.A. 159. See discussion supra Part IV.B. 160. See discussion supra Part II.